Jackson v. Commonwealth

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice

CHAUNCEY JACOB JACKSON
OPINION BY
v. Record Nos. 971720 & 971721 SENIOR JUSTICE HENRY H. WHITING
April 17, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Lydia Calvert Taylor, Judge

In these appeals, we review a capital murder conviction, a

sentence of death (Record No. 971720), and five other related

felony convictions (Record No. 971721).

I. PROCEEDINGS

On September 1, 1994, 16-year-old Chauncey Jacob Jackson

was arrested and incarcerated on charges of capital murder and

five other felonies. 1 The alleged crimes had all occurred the

day before. On September 21, 1994, the Norfolk Juvenile and

Domestic Relations District Court issued transfer orders

pursuant to Code § 16.1-269.1, certifying Jackson to the circuit

court for criminal proceedings as an adult on those charges.

On October 5, 1994, indictments were issued in the circuit

court charging Jackson with the following six felonies: (1) the

capital murder of Ronald Gene Bonney, Jr., while attempting to

rob him (Code §§ 18.2-31(4), 18.2-10), (2) attempted robbery

1
Although Jackson's middle name is shown as "Jacob" in the
pleadings and in many of the documents in the file, he described
and spelled it as "Jabob" in his statements to the police.
(Code §§ 18.2-58, 18.2-26), (3) and (4) two charges of the use

of a firearm while committing the above-mentioned offenses (Code

§§ 18.2-53.1, 18.2-10), (5) the conspiracy to commit a robbery

(Code §§ 18.2-22, 18.2-58, 18.2-10), and (6) the receipt of

stolen property (§§ 18.2-108, 18.2-95). The trial date was

fixed and continued eight times, six times on Jackson’s motion

and two times on joint motion of Jackson and the Commonwealth.

During the 23-month interval between the date of the

transfer order and August 21, 1996, when Jackson’s trial began,

it was discovered that indictments had been issued before the

circuit court conducted the review of Jackson’s transfer

required by Code § 16.1-269.6. On June 23, 1995, after

conducting the required review, a circuit judge other than the

trial judge concluded that the applicable statutes had been

complied with and authorized the Commonwealth to proceed against

Jackson by indictment. However, Jackson was not indicted on

these charges for the second time until December 6, 1995.

At the beginning of a bifurcated jury trial on August 21,

1996, Jackson was arraigned on the December 1995 indictments.

The trial was conducted pursuant to the provisions of Code

§§ 19.2-264.3, -264.4, and –295.1, and Jackson was found guilty

of all six charges. After hearing additional evidence, the jury

fixed Jackson’s punishment for the capital murder conviction at

death, based on the “future dangerousness” predicate. Code

2
§ 19.2-264.2. After considering a report prepared by a

probation officer pursuant to Code § 19.2-264.5, the court

sentenced Jackson in accordance with the jury verdict in the

capital murder case. Since he was a juvenile when the offenses

were committed, the court sentenced Jackson on the remaining

offenses in conformity with Code §§ 16.1-269.1 and -272 to terms

of imprisonment aggregating 48 years. The court suspended

eighteen years of the sentence for the conviction of receiving

stolen goods, subject to 20 years’ probation.

Pursuant to Code § 17-110.1(F), we have consolidated the

automatic review of Jackson’s death sentence with the appeal of

right of his capital murder conviction. By order entered August

14, 1997, Jackson’s appeal of his other convictions was

certified from the Court of Appeals, Code § 17-116.06, and we

have consolidated that appeal with the capital murder appeal and

given them priority on our docket. Code § 17-110.2.

II. THE EVIDENCE

We review the evidence in the light most favorable to the

Commonwealth, the prevailing party in the circuit court. Roach

v. Commonwealth, 251 Va. 324, 329, 468 S.E.2d 98, 101, cert.

denied, 519 U.S. ___, 117 S.Ct. 365 (1996).

A. Guilt Phase

The day after Bonney’s murder, Jackson made a series of

four oral statements to police investigators. The first

3
statement was not recorded, but the remaining three statements

were recorded and transcribed. The following facts appear in

one or more of those statements.

On the evening of August 31, 1994, Jackson was riding in a

Jeep Cherokee driven by his friend, Rashad Vick. Vick stopped

the vehicle when three other friends, standing near a so-called

"dope house" on Vine Street, waved at them. One of the three

friends suggested robbing a man, later identified as Ronald Gene

Bonney, Jr., who was within sight, seated in the driver’s seat

of a Chevrolet Blazer parked nearby. Jackson and Vick agreed.

Accordingly, two of the group acted as "lookouts." Jackson

procured a .25 caliber Beretta handgun from the Jeep.

Accompanied by Calvin Outlaw and Angelo Artis, the other two

members of the group, Jackson approached the parked vehicle.

Outlaw placed his leg against the driver’s door, next to Bonney,

and later took the keys from the ignition switch when Bonney

tried to drive away. Jackson, armed with the handgun, entered

the front seat of the vehicle from the passenger’s side, and,

according to his last statement, Jackson told Bonney to “[g]ive

it up.” Bonney then “started patting his pockets and said,

‘Give what up?’ . . . . And then [Bonney] said, ‘Shoot me, you

little f--ker.’ And then I cocked the gun, and then Angelo

stepped up, and the gun jammed, and I tried to unjam it, and it

shot.” The gun fired three bullets which hit Bonney in the

4
chest and arm and caused his death.

Jackson fled in the Jeep. He was arrested late that night

and brought to police investigators for an interview at 7:20

a.m.

B. Penalty Phase

The Commonwealth introduced evidence of Jackson’s criminal

record. It began with a finding that he was not innocent of the

theft of a car when he was 13 years old and included, a few

months later, a finding that he was not innocent of receiving

stolen property. When Jackson was 14 years old, he was also

found not innocent of possession of cocaine. Additionally,

Jackson was found not innocent of a number of offenses dealing

with motor vehicles, such as unauthorized use of an inspection

sticker, driving without a license, altered license plates, and

speeding. Many of the offenses were committed while Jackson was

on probation for earlier offenses.

Jackson had been incarcerated for more than 13 months on

the present charges when he was released on bond on October 24,

1995. In December 1995, while free on bond awaiting trial for

the subject offenses, Jackson was involved with several other

persons in the unlawful entry of a house in Jackson’s

neighborhood, and later convicted of the following 14 felony

charges arising therefrom: statutory burglary, four abductions,

5
robbery, attempted robbery, and seven charges of use of a

firearm during the commission of those crimes.

Additionally, an inmate testified that Jackson, again

incarcerated after the December 1995 incidents, assaulted him in

jail on February 9, 1996. This assault occurred less than two

months after Jackson had committed the December 1995 crimes and

before his capital murder trial in August and September 1996.

Jackson called as witnesses Dr. Evan S. Nelson and Dr.

Thomas Pasquale, both forensic psychologists, who had examined

and evaluated him. Both testified that Jackson had an

antisocial personality disorder, basing their diagnosis in part

on Jackson’s history of aggressive acts. Dr. Nelson assessed

Jackson as having a high number of “risk factors” for violent

conduct and Dr. Pasquale at one time had evaluated Jackson as

being a “moderate to severe [assault] risk.” However, both

psychologists declined to say that Jackson would be a future

danger to society. Dr. Nelson felt that an affirmative answer

to the question required a psychologist to “predict with

certainty that someone will commit an offense of violence in the

future.” Dr. Pasquale “follow[ed] the guidelines of the

American Psychological Association" which state that

“psychologists are best not to make such predictions due to the

fact that we have not developed the circumstances sufficiently

to be able to do so.”

6
 Although both psychologists testified that an antisocial

personality disorder cannot be cured, Dr. Pasquale opined that a

person with such a disorder could be “amenable to management.”

On the other hand, Dr. Nelson thought that Jackson’s history of

continued violent acts, especially when under the constraints of

probation, bond, and incarceration awaiting trial on these

charges, was a “very negative indicator for how much change

[from his violent acts against Bonney] we can expect from him

over the years.”

Jackson’s mother and grandmother, with whom Jackson lived,

testified that Jackson had been a normal child, and that they

had a good relationship with him. The grandmother said that

Jackson had been a good boy “until, you know, he got with the

wrong bunch of kids.” And the mother testified that Jackson

received a “long-term” suspension from school because, while

waiting in the school office for some sort of a disciplinary

interview, Jackson had told another student that he would kill

“somebody” if he were suspended from school.

Neighbors and persons who had contact with Jackson when he

was living at home described him as “respectful,” “polite,” and

“courteous.” A member of Jackson’s community also testified

that Jackson called her to ask “how [she] was doing” after an

operation.

7
 One of the members of the family that was burglarized and

robbed by Jackson and other intruders in December 1995 testified

that she knew Jackson and that he “just stood there” and “had

some tears in his eyes” during the robbery. However, she also

testified that Jackson had a gun and, like the other intruders,

was wearing a hood that partially masked his face.

III. WAIVER OF CERTAIN ASSIGNMENTS OF ERROR

Jackson did not brief, and has therefore waived,

assignments of error 6, 9, 12, 21, 29, and 32. Rule 5:27; Rule

5:17(c)(4); Williams v. Commonwealth, 248 Va. 528, 537, 450

S.E.2d 365, 372 (1994), cert. denied, 515 U.S. 1161 (1995). 2

IV. ISSUES PREVIOUSLY DECIDED

In the remaining assignments of error, Jackson raises a

number of issues which we have previously decided adversely to

his contentions. Because he offers no persuasive reasons to

modify our previous conclusions, and we perceive none, we will

adhere to our previous rejections of those contentions. Hence,

we will not discuss these contentions beyond identifying the

assignments of error to which we believe each contention relates

and citing representative cases in which those arguments were

2
It has been difficult to ascertain which assignments of error
have been briefed or which of the 37 assignments of error relate
to the 29 questions presented by Jackson. Jackson has not given
“a clear and exact reference to the particular assignment of
error to which each question relates” as required by Rule 5:27

8
expressly rejected.

The death penalty constitutes cruel and unusual punishment.

Rejected in Goins v. Commonwealth, 251 Va. 442, 453, 470 S.E.2d

114, 122, cert. denied, 519 U.S. ___, 117 S.Ct. 222 (1996);

Joseph v. Commonwealth, 249 Va. 78, 82, 452 S.E.2d 862, 865,

cert. denied, 516 U.S. 876 (1995).

“[I]mposition of the death penalty based on ‘future

dangerousness’ is unconstitutional because the use of [a] prior

unadjudicated factor is permitted without any requirement that

the conduct be established by any standard of proof.” Rejected

in Breard v. Commonwealth, 248 Va. 68, 74-75, 445 S.E.2d 670,

675, cert. denied, 513 U.S. 97l (1994); Satcher v. Commonwealth,

244 Va. 220, 228, 421 S.E.2d 821, 826 (1992), cert. denied, 507

U.S. 933 (1993); Stockton v. Commonwealth, 241 Va. 192, 210, 402

S.E.2d 196, 206, cert. denied, 502 U.S. 902 (1991).

The statute and the court’s instructions in conformity

thereto which permit imposition of the death penalty based on

“future dangerousness” are unconstitutional because they are

“incomplete and vague” and do not provide “meaning and

guidance.” Rejected in Williams v. Commonwealth, 248 Va. at

535, 450 S.E.2d at 371.

Allowing the introduction of evidence of Jackson’s

and 5:17(c)(4). Indeed, he rarely refers to the assignments of
error by number in the arguments in his brief.

9
convictions for other crimes in the sentencing phase to

establish future dangerousness violates the double jeopardy

clause of the Fifth Amendment of the United States Constitution.

Rejected in Mickens v. Commonwealth, 247 Va. 395, 404, 442

S.E.2d 678, 684-85, vacated on other grounds, 513 U.S. 922

(1994); Stewart v. Commonwealth, 245 Va. 222, 229, 427 S.E.2d

394, 400, cert. denied, 510 U.S. 848 (1993); Yeatts v.

Commonwealth, 242 Va. 121, 126, 410 S.E.2d 254, 258 (1991),

cert. denied, 503 U.S. 946 (1992).

This Court’s method of reviewing the proportionality of the

sentence by considering the records only of those murder cases

in which sentences of death were imposed and not of those murder

cases in which lesser sentences were imposed is invalid.

Rejected in Stamper v. Commonwealth, 220 Va. 260, 283-84, 257

S.E.2d 808, 824 (1979), cert. denied, 445 U.S. 972 (1980) (“test

is not whether a jury may have declined to recommend the death

penalty in a particular case but whether generally juries in

this jurisdiction impose the death sentence for conduct similar

to that of the defendant”).

V. PRETRIAL MATTERS

A. Discovery of Exculpatory Evidence

Jackson complains that the trial court did not “order

appropriate relief” when it failed to require the Commonwealth

to produce “exculpatory statements, evidence or admissions,” and

10
to “ensure that no such evidence existed; or, in the event that

it did exist, that it be provided for counsel for the

defendant.” However, he does not state in what respects the

court failed to provide such relief or how Jackson was

prejudiced thereby.

As the Commonwealth observes on brief, the record indicates

that Jackson was supplied with all exculpatory evidence within

the Commonwealth’s knowledge, which he used at trial.

Accordingly, we find no merit in this contention.

B. Suppression of Jackson’s Statements to Police

Jackson does not dispute the sufficiency of the

Commonwealth's evidence indicating that before his in-custody

interrogation by the police, he was fully advised of his Fifth

Amendment rights as required by Miranda v. Arizona, 384 U.S.

436, 467-73, 479 (1966). Although a juvenile, Jackson was not

unfamiliar with these rights as evidenced by his statement to

Investigator John R. Malbon that he had previously been arrested

and informed of his legal rights "about three times." Malbon

testified that while being advised of his rights, Jackson

appeared "calm" and "alert." In any case, Jackson does not

contend that he failed to understand either his rights or the

effect of a waiver but rather that the police engaged in a

strategy designed to capitalize on Jackson's youth and

isolation. His claim is that the police interrogated him for

11
"approximately 25 to 28 hours" and placed him “in a situation

where he was deprived of sleep, deprived of the advice and

counsel of his mother, [and he] was placed in a small windowless

interrogation room for hours on end, and denied repeated access

by his parent to him despite her best efforts.”

We find no support in the record for Jackson’s statement

that he was deprived of sleep and interrogated for 25 to 28

hours. Jackson was brought to the Norfolk Police Department on

the night of Bonney’s murder and put in a temporary holding

cell. Although he was awakened several times during the night

and offered food, water, and use of the bathroom, Jackson was

permitted to sleep until 7:05 the following morning.

The investigators interrogated Jackson four separate times

between 7:20 a.m. and 1:59 the next morning. These sessions,

together with related contacts setting up the interviews and

permitting Jackson to review the written transcripts of the

preceding two interrogations, totaled four hours and thirty-

eight minutes. The longest uninterrupted period of contact with

Jackson was one hour and twenty minutes. After each contact,

Jackson was left alone either in a locked cell or a locked

interview room while police investigated the accuracy of his

statements.

Jackson decided not to testify at the pretrial hearing on

the admissibility of his confession and called his mother, Carol

12
Lee Jackson, as his only witness on this subject. Her testimony

focused primarily on the alleged delay by the police in

permitting her to see her son.

Jackson does not claim that he asked for the presence of

his mother, 3 but suggests that police interrogation of a 16-year-

old juvenile without the presence of one of his parents is a

violation of his constitutional rights. In Wright v.

Commonwealth, 245 Va. 177, 185-86, 427 S.E.2d 379, 385-86

(1993), vacated on other grounds, 512 U.S. 1217 (1994), we

rejected the contention of a juvenile capital murder defendant

that his confession was involuntary in part because his mother

was not present at the interrogation. Like Jackson, Wright had

been advised of his rights when arrested on prior occasions and

had knowingly waived those rights before making the statement at

issue. Perceiving no significant difference between the

situation in Wright and the situation in this case, we reject

Jackson's suggestion.

The alleged police delay in honoring Ms. Jackson’s request

to see her son is irrelevant to the issue of the voluntariness

of his statements. As the United States Supreme Court observed

in Moran v. Burbine, 475 U.S. 412, 422 (1986), “[e]vents

3
Jackson did ask whether his mother was in the building during
his interrogation and was told that she was not. Therefore, we
do not consider the effect, if any, of a police officer's

13
occurring outside of the presence of the suspect and entirely

unknown to him surely can have no bearing on the capacity to

comprehend and knowingly relinquish a constitutional right." In

Moran, the police failed to tell a suspect in custody that his

attorney was trying to reach him. Id. at 433. Under these

circumstances, the Constitution of Virginia provides no greater

protection than the Fifth Amendment of the United States

Constitution. See Walton v. City of Roanoke, 204 Va. 678, 682,

133 S.E.2d 315, 318 (1963). Hence, we find no violation of

Jackson’s rights under either constitution because of the

failure of the police to permit Ms. Jackson immediate access to

her son. For these reasons, we conclude that Jackson's

statements were the product of his free will, made after a

knowing, voluntary, and intelligent waiver of his Miranda

rights. See Wright, 245 Va. at 185-86, 427 S.E.2d at 385-86.

C. Change of Venue

Jackson complains that the trial court denied him the

opportunity to present evidence of pre-trial publicity.

Jackson further alleges that the trial court had “clearly made

up her mind on the issue of pre-trial publicity, and ultimately

on the motion for change of venue.”

Contrary to these claims, the record shows that the trial

failure to honor a request by a juvenile for the presence of a
parent or guardian during an in-custody interrogation.

14
court merely told Jackson’s counsel that his oral proffer was

insufficient to schedule a hearing on this issue at that time.

However, the court permitted counsel a period of more than three

weeks in which to produce affidavits indicating that an

impartial jury could not be selected in Norfolk, after which the

court would consider fixing a date to hear evidence from both

sides on that issue. No affidavits were produced and, in fact,

Jackson filed no newspaper articles or other information with

the court.

Thus, the court was not presented with evidence sufficient

to overcome the "presumption that a defendant can receive a fair

trial from the citizens of the county or city in which the

offense occurred.” Stockton v. Commonwealth, 227 Va. 124, 137,

314 S.E.2d 371, 379, cert. denied, 469 U.S. 873 (1984). Hence,

we reject this contention.

D. Jury Matters

1. Refusal to strike entire venire

As prospective members of the jury sat in the courtroom

completing jury questionnaires, the court conducted sentencing

proceedings in an unrelated matter and explained to those

parties that, although a defendant in a pre-1995 case may be

eligible for parole, an exact calculation of how much time he

would serve was impossible. Jackson asked the court to strike

15
the panel because this explanation was made within the hearing

of his venire.

As soon as Jackson raised the issue, the court asked the

entire venire who among them had heard its discussion. Although

20 panel members indicated that they had heard parts of the

court’s explanations, none of them was among the venire

comprising panel members from whom the jury was actually

selected. Under these circumstances, we find no error in the

trial court’s refusal to strike the entire venire.

2. Peremptory strikes by the Commonwealth

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the United

States Supreme Court held that purposeful discrimination based

on race in selecting jurors violates the Equal Protection

Clause. If an accused makes a prima facie showing of the

prosecution’s use of peremptory strikes on the basis of race,

the burden shifts to the prosecution to articulate race-neutral

reasons for such strikes. Chichester v. Commonwealth, 248 Va.

311, 323, 448 S.E.2d 638, 646 (1994), cert. denied, 513 U.S.

1166 (1995).

In exercising its peremptory strikes, the Commonwealth

removed four black members of the venire. When challenged as to

the reasons for three of the four strikes, the Commonwealth gave

the following explanations: one prospective juror had “fairly

recent DUI and CCW convictions,” another’s son had been

16
convicted of firearm possession and for selling drugs, and the

third was a social services employee. One of the prosecutors

with experience with social services employees found them to be

“fairly liberal” and without exception possessed of a belief

that treatment rather than punishment was a more appropriate way

of dealing with juvenile offenders.

Jackson, who is black, does not attack the racial neutrality

of these statements; instead he claims that they were pretextual

explanations designed to mask racially discriminatory reasons

for the peremptory strikes. Concluding that Jackson has failed

to carry his burden of showing that the court abused its

discretion in accepting those explanations, we find no merit in

this contention. See James v. Commonwealth, 247 Va. 459, 461-

62, 442 S.E.2d 396, 398 (1994).

3. Refusal to grant Jackson’s strikes for cause

In reviewing a trial court’s action in denying a motion to

strike prospective jurors for cause, absent manifest error, we

defer to the trial court’s exercise of discretion. Roach, 251

Va. at 343, 468 S.E.2d at 109; Yeatts v. Commonwealth, 242 Va.

at 134, 410 S.E.2d at 262. Applying this standard, we find no

error in the trial court’s refusal to sustain Jackson’s motions

to strike the following three prospective jurors for cause.

Robert Lee was one of a group of five prospective jurors

present when another member of the group asked whether the jury

17
would be able to “say no to the death penalty and yes to life

but life without parole?” The court responded:

No. The jury has very limited things they’re told to
do. They can only do what they’re told to do. They
can say life or they can say death. That’s all
they're allowed to do.

The court offered to discuss the matter further with the five

members of the venire and to ask them whether her explanation

had affected the venire members in any way prejudicial to

Jackson. Jackson declined both offers. Hence, he waived any

objection he may have had to the court’s response.

Prospective juror Elizabeth Huffman’s first cousin was the

wife of the Commonwealth’s attorney for the City of Norfolk.

The Commonwealth was represented throughout the trial by two

assistant Commonwealth's attorneys; the Commonwealth’s attorney

signed none of the pleadings and did not appear at trial.

Ms. Huffman testified that she generally saw her cousin’s

husband only twice a year at family gatherings and that her

limited association with him would not affect her ability to

give Jackson a fair trial. However, Jackson claims that,

because she indicated that these family gatherings were at

Christmas and other important holidays, she “gave the

insurmountable appearance of bias for a juror in a capital

murder case.” We do not agree.

18
 The relationship Ms. Huffman had with the Commonwealth’s

attorney does not disqualify her from sitting on this jury. See

Roach, 251 Va. at 343, 468 S.E.2d at 109 (Commonwealth’s

attorney in capital murder case formerly represented prospective

juror in matter and prospective juror still regarded him as his

“personal attorney"); Wise v. Commonwealth, 230 Va. 322, 325,

337 S.E.2d 715, 717 (1985), cert. denied, 475 U.S. 1112 (1986)

(Commonwealth’s attorney “golfing buddy” and “long standing”

friend of prospective juror).

An illiterate juror was seated over Jackson’s objection.

Recognizing that illiteracy does not disqualify a juror under

any statute in Virginia, Jackson contends that seating such a

person as a juror violates “his rights under the Fifth, Sixth

and Fourteenth Amendments to the United States Constitution” and

the “strong public policy against seating illiterate jurors.”

Jackson claims that such a policy is reflected in 28 U.S.C.

§ 1865, which requires a juror in the federal courts to be able

to read, write, and understand the English language. Jackson

argues that “he had the benefit of at most, eleven jurors [and]

[i]t is unknown what one juror or more, may have said to [the

illiterate juror] or whether they made any mistakes, intentional

or unintentional, in reading the written materials.”

We do not agree with Jackson. In Virginia, illiteracy does

not automatically disqualify a person from serving as a juror if

19
the trial court takes steps to assure that the illiterate juror

has essentially the same opportunity to review the written

material in the case as the other jurors. Here, the record

indicates that virtually all the documentary evidence, the

court’s instructions to the jury, and the verdict forms were

read to the jury, and that the illiterate juror was able to have

any documents read to her by the other jurors. And we assume

that the other jurors accurately read the documents to the

illiterate juror.

E. Circuit Court Review of Juvenile Court
Transfer Proceedings

Jackson raises a number of issues stemming from the nine-

month period before the circuit court reviewed the juvenile

court’s transfer order.

As relevant, Code § 16.1-269.6(B) in effect in September

1994 provided that:

The circuit court shall, within a reasonable time
after receipt of the case from the juvenile court (i)
examine all such papers, reports and orders; (ii) if
either the juvenile or the attorney for the
Commonwealth has appealed the transfer decision,
conduct a hearing to take further evidence on the
issue of transfer, to determine if there has been
substantial compliance with § 16.1-269.1, . . . and
(iii) enter an order either remanding the case to the
juvenile court or advising the attorney for the
Commonwealth that he may seek an indictment.

As we have noted earlier, there was no such review before the

October 1994 indictments were returned. The review occurred on

20
July 23, 1995.

Jackson maintains that the court should have sustained his

motion to quash the October 1994 indictments on the ground that

they were issued before the circuit court had entered its July

1995 order authorizing the Commonwealth to proceed by indictment

against him. The Commonwealth responds that no such review was

required in this case because neither party appealed the

transfer order.

We do not agree with the Commonwealth. The statute clearly

required this review, even if neither party filed an appeal to

the juvenile court’s transfer order. If such an appeal is

filed, the statute required the circuit court to schedule a

hearing in addition to its review. 4

Accordingly, we conclude that the circuit court had no

jurisdiction to try Jackson on the October 1994 indictments.

Even so, the court had jurisdiction over Jackson following the

required circuit court review of the transfer order and it could

and did try him on the indictments issued thereafter.

This brings us to Jackson’s contentions that the court

should have sustained his motion to dismiss the December 1995

indictments. The Commonwealth's attorney sought and obtained

4
The statute presently in effect does not require the review if
the transfer decision is not appealed. Code § 16.1-269.6(B); II
Acts of Assembly 1996, c. 755, p. 1338.

21
those indictments in accordance with the circuit court’s

authorization order entered after its transfer review in June

1995. Jackson reasons that the circuit court never acquired

jurisdiction over him because it failed to act upon the juvenile

court’s transfer order within a reasonable time, as required by

Code § 16.1-269.6(B), and he never had the benefit of a

subsequent and more current juvenile court transfer review prior

to his December 1995 indictments. We find no merit in either

contention.

Although the requirement of a transfer review is

jurisdictional, the time within which that review must be made

is procedural. Jamborsky v. Baskins, 247 Va. 506, 511, 442

S.E.2d 636, 638-39 (1994). In Jamborsky, we concluded that,

absent a showing of prejudice to the juvenile’s due process

rights, a procedural error in conducting the review three days

after the then statutorily specified 21-day period for review,

did not invalidate the review. Id., 442 S.E.2d at 638.

Here, the nine-month period before conducting the review

was unreasonable and constituted a procedural error in failing

to comply with the statute in effect at that time. However,

Jackson does not claim that he was prejudiced by the delay in

conducting the review. Indeed, the record indicates that

Jackson treated the case as properly before the circuit court

and continued his preparation in the same manner before and

22
after he was told on October 24, 1995, of the circuit court’s

failure to conduct the review of his transfer order within a

reasonable time. The record fails to disclose that the

procedural error prejudiced Jackson in such a manner as to

constitute a denial of due process. See id. Accordingly, we

find no merit in this contention.

F. Violation of Rights to a Speedy Trial

This brings us to Jackson’s contention that his

constitutional and statutory rights to a speedy trial have been

violated. Jackson’s trial did not begin within the periods

fixed for a speedy trial by Code § 19.2-243 and it may not have

begun within a period considered as constitutionally permissible

under normal circumstances.

However, we find no violation of those rights in these

cases. As we have noted, every continuance was either on

Jackson’s motion alone or a motion he made jointly with the

Commonwealth. Under these circumstances, we conclude that

Jackson has waived his statutory and constitutional rights to a

speedy trial. O’Dell v. Commonwealth, 234 Va. 672, 681, 364

S.E.2d 491, 496, cert. denied, 488 U.S. 871 (1988); see also

Barker v. Wingo, 407 U.S. 514, 534 (1972).

Nevertheless, since the circuit court had no jurisdiction

to try him on the October 1994 indictments, Jackson contends

that the waivers of his speedy trial rights before his release

23
on bond in October of 1995 were as void as those indictments.

In deciding whether to transfer Jackson for proper criminal

proceedings, Code § 16.1-269.1(2) requires the juvenile court to

find “that probable cause exists to believe that the juvenile

committed the delinquent act as alleged.” The delinquent acts

alleged were the commissions of six felonies referred to

earlier. Accordingly, Jackson’s speedy trial rights attached

upon that determination of probable cause. Compare Code § 16.1-

269.1(2) with Code § 19.2-243 (speedy trial rights of an accused

attach upon general district court’s finding of probable cause

“to believe that the accused has committed a felony”).

It was those rights that Jackson waived in his motions for

a continuance of the trial, not any right having to do with the

validity of the indictments returned against him in the circuit

court. For these reasons, we reject this contention.

VI. THE TRIAL

A. Guilt Phase Issues

1. Testimony of Lakisha Spruill

Shortly before the expected close of the Commonwealth’s

case in chief, it appeared that a recess until the next day

would be required to obtain the presence of a witness for

Jackson. To conserve trial time, the court suggested that the

Commonwealth rest its case except for some evidence relating to

Jackson’s failure to conform to court orders to appear in

24
criminal matters and his flight to avoid arrest on an unrelated

motor vehicle charge. Defense counsel responded that “I think

procedurally we cannot do that.” When the court responded that

it was “a perfectly acceptable procedure,” defense counsel made

and argued the motion to strike, which the court considered and

denied.

The next day, the Commonwealth called Lakisha Spruill, an

eyewitness to Jackson's encounter with Bonney. Jackson objected

to this action on the ground that the Commonwealth had rested

its case. Jackson did not claim that he would be surprised by

Spruill’s testimony or that he had not talked to her about her

testimony. In fact, he had summoned her as a witness. The

court overruled the objection, assigning a number of reasons for

its action, one of which was that it had the discretion to vary

the order of trial.

Jackson argues that he was prejudiced by the court’s action

(1) in requiring him to argue the motion to strike in which he

pointed out the lack of corroboration of Jackson’s attempted

robbery of Bonney before the Commonwealth had actually rested

its case, and (2) in permitting Spruill to testify after Jackson

had made his motion to strike.

In the absence of a showing of prejudice, a trial court

may, in the exercise of its discretion, permit the Commonwealth

to reopen its case after it has rested and the defendant has

25
moved to strike the evidence. Hargraves v. Commonwealth, 219

Va. 604, 608, 248 S.E.2d 814, 816-17 (1978). We will not

reverse such a ruling, absent an abuse of discretion. Id.

Under the circumstances of this case, and without necessarily

approving the procedure followed, we are unable to say that the

court abused its discretion in permitting the Commonwealth to

call Spruill as a witness after it had rested its case. Nor can

we say that the trial court erred in holding that Jackson was

not prejudiced by its action.

2. Rulings on sufficiency of evidence

Jackson contends that the court erred in overruling his

motions to strike made at the conclusion of the Commonwealth’s

case and after both parties had rested their case in the guilt

phase because the Commonwealth’s evidence was insufficient to

convict him of the crime of attempted robbery. He bases his

claim upon the Commonwealth’s alleged failure to sustain its

burden of proving that this crime has been committed (the corpus

delicti). Maughs v. City of Charlottesville, 181 Va. 117, 120,

23 S.E.2d 784, 786 (1943) (Commonwealth must prove corpus

delicti in every criminal prosecution); Nicholas v.

Commonwealth, 91 Va. 741, 750, 21 S.E. 364, 366-67 (1895).

(Commonwealth’s burden to establish corpus delicti); see also

Epperly v. Commonwealth, 224 Va. 214, 228-29, 294 S.E.2d 882,

890-91 (1982).

26
 Jackson’s statements, as successively amended, show clearly

that, pursuant to the agreement with his friends, Jackson

retrieved the .25 caliber handgun from the Jeep for the purpose

of robbing Bonney, and that, during the robbery attempt, when

Bonney refused to give him his money, Jackson stepped out of the

vehicle and fired the gun three times, killing Bonney. 5

While Jackson recognizes that his statements tend to show

the corpus delicti of attempted robbery, he argues correctly

that the corpus delicti cannot be established solely by his

uncorroborated statements. Wheeler v. Commonwealth, 192 Va.

665, 669, 66 S.E.2d 605, 607 (1951). However, only slight

corroboration of an accused’s statements is required to

establish the corpus delicti when the accused fully confesses

that he committed the crime. Clozza v. Commonwealth, 228 Va.

124, 133, 321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S.

1230 (1985); Lucas v. Commonwealth, 201 Va. 599, 603, 112 S.E.2d

915, 918 (1960).

Jackson’s confession of the attempted robbery and murder of

Bonney was corroborated in many respects. The passenger who

came to the scene in Bonney’s Blazer testified that, after

5
The jury was not required to accept Jackson’s statement that
the gun fired accidentally while he was attempting to clear a
jam. In fact, the pistol was fired three times at some distance
from Bonney and a firearms expert testified not only that the
gun would not fire when jammed but also that the trigger had to
be pulled each time before the gun would fire a single bullet.

27
discussing where to buy crack cocaine, Bonney and the passenger

went to a house in Norfolk where the passenger knew he could buy

drugs. When they arrived, the passenger directed Bonney to wait

in the Blazer while he went into the house to make the purchase.

Lakisha Spruill, an eyewitness who was seated on the porch of a

house next door, saw the passenger leave the Blazer and enter

the house while the driver remained in the Blazer. Spruill, who

had known Jackson for some time, saw him get into the

passenger’s side of the Blazer, talk to the driver, and the

“[n]ext thing I heard was gunshots.”

The circumstantial evidence at the scene of the murder also

corroborated Jackson’s statements. A police investigator

identified Outlaw’s palm print on the driver’s door of Bonney’s

vehicle and also testified that the keys to Bonney's vehicle

were not found in the Blazer, supporting Jackson’s statement

that Outlaw had reached into the car and removed the keys to

prevent Bonney from driving away.

In our opinion, these circumstances corroborate Jackson's

confession that he had killed Bonney during an attempted

robbery. The evidence demonstrates that the defendant and a

confederate converged upon a stranger and engaged in conduct

designed to prevent the stranger from fleeing while the

defendant spoke to him and carried a loaded pistol. This

corroborating evidence is consistent with a reasonable inference

28
that Jackson was attempting to rob Bonney when he shot him.

Indeed, this corroborating evidence is more consistent with the

commission of the offense than it is with its non-commission.

See Wright v. Commonwealth, 245 Va. at 194, 427 S.E.2d at 390

(confession to attempted rape corroborated by discovery of

victim's underpants which had been removed and were found at

crime scene); cf. Phillips v. Commonwealth, 202 Va. 207, 212,

116 S.E.2d 282, 285 (1960) (corroborating evidence "just as

consistent with non-commission of the offense as it is with its

commission").

B. Penalty Phase Issues

1. Subjecting 16-year-old defendants to death penalty

Jackson, who had attained his 16th birthday only six weeks

before the offenses occurred, contends that execution of 16-

year-old defendants is not authorized by statute in Virginia.

According to him, in Stanford v. Kentucky, 492 U.S. 361 (1989),

the United States Supreme Court made it “very clear that it is

up to each state to decide the minimum age for execution” and

“provide[d] that each state must enact [death penalty statutes]

with great specificity, especially dealing with juveniles, in

order to allow for constitutionally sound punishments.” Since

Code §§ 18.2-31, 19.2-264.2 and –264.5 do not specifically

provide for the imposition of the death penalty on juveniles

convicted of capital murder, Jackson concludes that the death

29
penalty cannot be imposed upon him. We do not agree.

Under the provisions of Code §§ 16.1-269.1 and –272,

juveniles over the age of 14 years are, after proper proceedings

in juvenile court and circuit court, subject to trial and

possible punishment as an adult. Indeed, in the statute in

effect at the time of the crime, the legislature provided for

transfer hearings in the juvenile court when such a juvenile is

charged with capital murder. Code § 16.1-269.1(B). In our

opinion, Code § 16.1-269.1 addresses the prosecution and

punishment of juveniles in as much detail as the similar

Kentucky and Missouri statutes which are acknowledged in

Stanford as sufficient to authorize those states to impose the

death penalty upon juveniles 16 or 17 years of age.

Jackson also argues that imposition of the death penalty

upon a 16-year-old juvenile constitutes cruel and unusual

punishment in violation of the Eighth Amendment to the United

States Constitution. In Stanford, the Court stated, “[w]e

discern neither a historical nor a modern societal consensus

forbidding the imposition of capital punishment on any person

who murders at 16 or 17 years of age.” 492 U.S. at 380.

And we discern no such consensus in Virginia, as evidenced

by its statutes subjecting juveniles over the age of 14 to

punishment as adults. Code §§ 16.1-269.1, -272. Therefore, we

conclude that a 16-year-old person who is convicted of capital

30
murder may be subjected to capital punishment.

2. Psychological evaluation under Code § 19.2-264.3:1(F)(1)

Pursuant to the provisions of Code § 19.2-264.3:1(E),

Jackson gave notice of his intent to present psychological

evidence on the issue of mitigation of punishment during the

penalty phase of the trial. In response, the Commonwealth

requested the court to order Jackson to submit to a court-

ordered examination by a psychologist designated by the court as

provided in Code § 19.2-264.3:1(F)(1) in the following relevant

language:

If the attorney for the defendant gives notice
pursuant to [Code § 19.2-264.3:1(E)] and the
Commonwealth thereafter seeks an evaluation concerning
the existence or absence of mitigating circumstances
relating to the defendant’s mental condition at the
time of the offense, the court shall appoint one or
more qualified experts to conduct such an evaluation.
The court shall order the defendant to submit to such
an evaluation, and advise the defendant on the record
in court that a refusal to cooperate with the
Commonwealth’s expert could result in exclusion of the
defendant’s expert evidence.

The succeeding paragraph states in pertinent part:

If the court finds . . . that the defendant has
refused to cooperate with an evaluation requested by
the Commonwealth, the court may admit evidence of such
refusal or, in the discretion of the court, bar the
defendant from presenting his expert evidence.

Code § 19.2-264.3:1(F)(2).

Over Jackson’s objection, the court ordered him to submit

to an evaluation by Dr. Nelson, a forensic psychologist,

31
appointed under the provisions of these statutes. Jackson

submitted to the evaluation. Although Jackson, not the

Commonwealth, called Dr. Nelson as a witness in his own behalf

in the penalty phase of the trial, he complains that the court

erred in several respects in ordering his evaluation by Dr.

Nelson.

First, he contends that the evaluation should not have been

ordered. According to Jackson, the statute violated his Fifth

Amendment rights against self-incrimination and his Sixth

Amendment rights to a fair trial because the statute required

him to cooperate with a court-appointed psychiatrist or suffer

the possibility that his expert evidence would be barred. We

rejected similar contentions in Stewart v. Commonwealth, 245 Va.

at 243-44, 427 S.E.2d at 407-08, and we apprehend no reason to

modify our opinion on those issues.

Second, Jackson maintains that, in ordering the evaluation,

the court failed to warn Jackson of the consequences of his

failure to cooperate and ruled erroneously that Dr. Nelson could

testify in the penalty phase even though Jackson never called

his own expert on the issue of mitigation. We do not consider

either contention because Jackson called Dr. Nelson as his own

witness. A defendant in a criminal case cannot take advantage

of an alleged error he has injected into the record. Saunders

v. Commonwealth, 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970).

32
 Nevertheless, Jackson claims that the court erroneously

"allowed Dr. Nelson to offer an opinion on Jackson’s future

dangerousness," which was “an opinion on the ultimate issue of

fact.” We do not agree for two reasons.

First, Dr. Nelson merely testified as to the risk factors

associated with violence that were exhibited in Jackson’s

personality and caused him to diagnose Jackson as suffering from

an antisocial personality disorder. Dr. Nelson testified

further that Jackson exhibited more of the risk factors for

future violent acts “than many of the other [criminal]

defendants I have evaluated.” Dr. Nelson quantified neither the

extent of those factors nor the probability of Jackson’s future

dangerousness and he did not opine that Jackson would be a

danger in the future. Jackson recognizes this in his later

argument that Dr. Nelson “could not say that Jackson would be a

danger in the future.”

Second, even if Dr. Nelson had expressed an opinion of

Jackson’s “future dangerousness,” such evidence would not have

constituted an opinion as to the ultimate issue in this case.

That issue is whether Jackson should be sentenced to death or

imprisoned for life. Payne v. Commonwealth, 233 Va. 460, 469-

70, 357 S.E.2d 500, 506, cert. denied, 484 U.S. 933 (1987).

Accordingly, we reject all of Jackson’s claims relating to

his psychological evaluation and to Dr. Nelson’s testimony.

33
3. Sufficiency of Evidence of Future Dangerousness

Since neither psychologist was willing to predict that

Jackson would commit criminal acts of violence in the future,

Jackson argues that the court erred in submitting this issue to

the jury since it “could only arrive at a verdict by speculation

and guesswork.” We disagree.

Expert opinion is not required on this issue if there is

sufficient evidence to permit a lay person to conclude that an

accused would commit criminal acts of violence in the future

that would constitute a serious danger to society. Indeed, we

have held that a jury is entitled to disregard an expert’s

opinion that a defendant would not be dangerous in the future.

Saunders v. Commonwealth, 242 Va. 107, 114-15, 406 S.E.2d 39,

43, cert. denied, 502 U.S. 944 (1991). Rejecting Jackson’s

contentions, we conclude that there was sufficient evidence to

permit a reasonable person to conclude beyond a reasonable doubt

that Jackson would be dangerous in the future.

4. Instructions refused

Jackson contends the court erroneously refused two

instructions he tendered, one of which would have told the jury

that it “must consider a mitigating circumstance if you find

there is evidence to support it” and the other that the jury was

not required to fix the punishment at death even if the jury

found “beyond a reasonable doubt, the existence of the

34
aggravating circumstance(s).” The claim is that these theories

were not covered by other instructions.

We disagree. The only instruction granted in the penalty

phase told the jury that if it found beyond a reasonable doubt

that the Commonwealth proved future dangerousness, the jury may

"fix the punishment of the defendant at death.” It further

instructed the jury that “if you believe from all of the

evidence that the death penalty is not justified," then the jury

could fix Jackson’s punishment at life imprisonment or life

imprisonment and a fine. Since both Jackson’s theories were

covered by these instructions, he is not entitled to have

duplicative instructions on those theories. See, e.g., Tuggle

v. Commonwealth, 228 Va. 493, 508, 323 S.E.2d 539, 548 (1984),

vacated and remanded on other grounds, 471 U.S. 1096 (1985),

aff'd on remand, 230 Va. 99, 334 S.E.2d 838 (1985), cert.

denied, 478 U.S. 1010 (1986). Furthermore, we have held that

instructions similar to those given by the court in this case

"adequately stated the statutory framework and were sufficient."

LeVasseur v. Commonwealth, 225 Va. 564, 595, 304 S.E.2d 644, 661

(1983), cert. denied, 464 U.S. 1063 (1984). For these reasons,

we find no error in the court's refusal of Jackson’s tendered

instructions.

VII. SENTENCE REVIEW

35
 Under Code § 17-110.1(C)(1) and (2), we are required to

determine “[w]hether the sentence of death was imposed under the

influence of passion, prejudice or any other arbitrary factor,"

and “[w]hether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant."

A. Passion and Prejudice

Jackson does not contend that the sentence of death was

imposed under any of the impermissible factors and our

independent review of the entire record fails to reveal that the

jury’s death sentence “was imposed under the influence of

passion, prejudice or any other arbitrary factor.” Code § 17-

110.1(C)(1).

B. Excessiveness and Proportionality

Jackson argues that a review of similar capital murder

cases “would reflect the excessiveness and disproportionate

punishment inflicted on this 16 year old defendant.” We

disagree.

In our proportionality review, we have considered “whether

other sentencing bodies in this jurisdiction generally impose

the supreme penalty for comparable or similar crimes,

considering both the crime and the defendant." Jenkins v.

Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992),

cert. denied, 507 U.S. 1036 (1993). Our comparison of the

36
record in this case with the records in other capital murder

cases, including those in which life sentences were imposed,

fails to indicate that the death penalty imposed in this case is

“excessive or disproportionate to the penalty imposed in similar

cases, considering both the crime and the defendant." Code

§ 17-110.1(C)(2).

Since the jury based its death sentence solely on the

“future dangerousness” predicate, we have given particular

consideration to other capital murder cases in which robbery or

attempted robbery was the underlying felony and the death

penalty was based only on the “future dangerousness” predicate.

Such cases were compiled in Yeatts v. Commonwealth, 242 Va. at

143, 410 S.E.2d at 267-68, and supplemented in Chichester, 248

Va. at 332-33, 448 S.E.2d at 652, and Roach v. Commonwealth, 251

Va. at 351, 468 S.E.2d at 113 (17-year-old defendant).

Our conclusion is that, while there are exceptions, juries

in this Commonwealth generally impose the death sentence for

crimes comparable to Jackson’s murder of Bonney. Jackson killed

Bonney in cold blood simply because Bonney had refused to comply

with Jackson’s demand for money. This killing demonstrates

Jackson’s lack of respect for human life.

Although Jackson was only 16 years old when he killed

Bonney, his criminal conduct on other occasions, especially the

violent acts he committed while (1) on probation, (2) free on

37
bond, and (3) in jail awaiting trial for these offenses,

manifests an escalating pattern of violent criminal behavior

that compels us to conclude that the imposition of the death

penalty in his case is neither excessive nor disproportionate to

the penalty imposed in similar cases. 6

VIII CONCLUSION

We find no reversible error in the issues presented in this

case. After reviewing Jackson’s sentence of death pursuant to

Code § 17-110.1, we decline to commute the sentence of death.

Therefore, we will affirm the judgments of the trial court.

Affirmed.

JUSTICE HASSELL, concurring in part and dissenting in part.

Code § 17-110.1(C)(2) requires this Court to consider and

determine “[w]hether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.”

We have stated that “the test of proportionality is whether

‘juries in this jurisdiction generally approve the supreme

penalty for comparable or similar crimes.’” Davidson v.

Commonwealth, 244 Va. 129, 136, 419 S.E.2d 656, 660, cert.

denied, 506 U.S. 959 (1992) (citing Smith v. Commonwealth, 239

6
Unlike the dissent, in resolving the issues of excessiveness
and proportionality, we did not limit our comparison to the
records in cases in which the defendants were 16 years old when

38
Va. 243, 271, 389 S.E.2d 871, 886, cert. denied, 498 U.S. 881

(1990) (quoting Stamper v. Commonwealth, 220 Va. 260, 284, 257

S.E.2d 808, 824 (1979), cert. denied, 445 U.S. 972 (1980))).

Juries in Virginia generally have not approved of the imposition

of the death penalty for 16-year-old capital murder offenders.

Since 1987, ten 16-year-old offenders have been convicted

of capital murder, and only one defendant, Chauncey J. Jackson,

has been sentenced to death. I agree with the majority that

Jackson’s offenses are atrocious and that he has exhibited

little, if any, regard for the value of human life or the

consequences of his criminal conduct. However, my review of all

capital murder cases involving 16-year-old offenders in Virginia

leads me to the conclusion that the sentence of death imposed

upon Jackson is excessive and disproportionate to penalties

imposed in similar cases.

For example, in Novak v. Commonwealth, 20 Va. App. 373,

382, 457 S.E.2d 402, 406 (1995), a Virginia Beach jury refused

to impose the penalty of death upon a 16-year-old defendant,

Shawn Paul Novak, even though the jury convicted him of capital

murder. The facts in Novak are more egregious than the facts in

the present case. Novak killed two young boys, age 7 and age 9.

The seven-year-old victim died from “three stab wounds which

the offenses were committed. Instead, we considered Jackson’s
age as one of many relevant factors.

39
would have been a quick three thrusts resulting in

incapacitation and . . . repeated cutting and slashing of the

neck until it was almost decapitated . . . .” The nine-year-old

victim “had been killed by a ‘blunt force injury’ and ‘multiple

slashes’ on his neck.” Id. at 379-80, 457 S.E.2d at 405.

In Owens v. Commonwealth, No. 2259-95-1 (Va. Ct. App. Nov.

*19, 1996), the defendant, Marvin T. Owens, was convicted of

capital murder. Owens killed four persons, including a 14-year-

old boy, by using a pistol to shoot each victim in the head.

Just as Jackson, Owens had an extensive juvenile criminal

history, including commitments to the Department of Youth and

Family Services for the following criminal offenses: conspiracy

to distribute cocaine, possession of cocaine with the intent to

distribute, and possession of cocaine. The jury fixed Owens’

punishment at life imprisonment.

The case of Reid v. Commonwealth, No. 1175-95-1 (Va. Ct.

App. July 2, 1996), is very similar factually to the present

case. There, the defendant, Dwayne M. Reid, then 16 years old,

approached two males who were traveling in a truck in Suffolk.

The men in the truck, Joseph Mehalko and Tommy Runyon, asked

several young male pedestrians, including Reid, whether any of

the pedestrians had “a twenty rock [of crack cocaine].” One of

the pedestrians threw an item, about the size of a pebble,

through a window into the truck, and Mehalko and Runyon,

40
thinking the item was a rock of crack cocaine, began to search

for it. As Runyon retrieved some money from his wallet, Mehalko

noticed “a gun come through the passenger side window.” A

struggle ensued, and Reid shot Runyon in the head. Runyon

subsequently died as a result of the gunshot wound.

Reid had a prior criminal record, and he had been convicted

of the following crimes: two counts of armed robbery and two

different offenses of use of a firearm during the commission of

robbery. At a bench trial, Reid was convicted of capital murder

and sentenced to life imprisonment.

In Rea v. Commonwealth, 14 Va. App. 940, 941, 421 S.E.2d

464, 465 (1992), the defendant, Stephen Rea, was convicted, at a

jury trial, of three separate counts of capital murder. Rea

killed three persons, including a 17-year-old boy, by shooting

them with a firearm. Rea had an extensive juvenile criminal

history. He was arrested for petty larceny which was taken

under advisement for six months. He was arrested and charged

for disorderly conduct, vandalism, and “being a runaway,” and he

was convicted and placed on supervised probation. He was

arrested for trespass, which was resolved at the juvenile

intake. He was arrested for violation of his probation. He was

subsequently arrested for breaking and entering, petty larceny,

and grand larceny, and placed on house arrest and ordered to pay

restitution. He was also arrested for eluding police, reckless

41
driving, and driving without a Virginia operator’s license. The

jury fixed Rea’s punishment at life imprisonment for each of the

capital murder convictions. See also Faulk v. Commonwealth, CR

95J2 and CR95J4 (Southhampton County Cir. Ct. Sept. 17, 1996)

(Defendant, 16 years of age at the time of the offenses, pled

guilty to capital murder in the commission of robbery, capital

murder in the commission of abduction, and robbery with a

weapon, and sentenced to life imprisonment.); Prostell v.

Commonwealth, No. J-1179 (Virginia Beach Cir. Ct. June 18, 1987)

(The 16-year-old defendant, whose criminal history included one

previous felony conviction as a juvenile, pled guilty to capital

murder and received life imprisonment. The defendant killed the

victim after being advised by a co-defendant that the defendant

would receive $300 for the murder of the victim. At the time of

the murder, the defendant was on probation after having been

found guilty of robbery.); Campbell v. Commonwealth, No. 5559

(Amherst County Cir. Ct. June 4, 1987) (The defendant was found

guilty at a bench trial of capital murder and certain other

related crimes. The defendant, 16 years old at the date of this

offense, entered a pizza restaurant wearing a ski mask and armed

with a loaded 12-gauge shotgun, ordered the employees to the

floor, and shot a restaurant employee in the head, killing him.

The defendant was sentenced to life imprisonment.); Stewart v.

Commonwealth, No. 2928-97-1 (Va. Ct. App. July 7, 1997) (This

42
16-year-old defendant pled guilty in the Norfolk Circuit Court

to capital murder and certain other related offenses and was

sentenced to life without parole plus 18 years. The defendant

killed the victim with a pistol during an attempted robbery.).

Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995)

(This 16-year-old defendant was convicted of capital murder,

robbery, and using a firearm to commit murder and was sentenced

to life imprisonment for the capital murder, 20 years’

imprisonment for the robbery, and two years’ imprisonment for

the firearm charge. His prior record included convictions for

petit larceny and possession of a beeper/pager on school

grounds. He had been arrested and charged on two separate

occasions for assault and battery, but those charges were nolle

prossed.).

Shawn Novak, age 16, killed two young boys, but he was not

sentenced to death. Stephen Rea, age 16, killed three people,

including a teenager, but he was not sentenced to death. Marvin

Owens, age 16, killed four persons, but he was not sentenced to

death. Dwayne Reid, who committed crimes substantially similar

to Jackson’s crimes, was not sentenced to death. Upon

comparison of Jackson’s sentence of death, along with his

criminal history and facts surrounding his case, to the facts

and criminal histories of the other defendants who committed

capital offenses at age 16, I can only conclude that Jackson’s

43
sentence of death is both excessive and disproportionate in

violation of Code § 17-110.1 (C)(2).

I would reduce Jackson’s sentence of death to life

imprisonment. In view of Jackson’s sentences for his other

convictions, he would remain incarcerated for the remainder of

his natural life.

44